Citation NR: 9739276
Decision Date: 11/25/97 Archive Date: 12/03/97
DOCKET NO. 95-38 096 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to compensation under the provisions of Title 38,
United States Code, Section 1151, for residuals of a
mastectomy of the left breast due to delayed hospitalization
or medical or surgical treatment at a Department of Veterans
Affairs treatment facility from April 1990 to February 1992.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jeffrey D. Parker, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1945 to March
1946.
This appeal arose from a rating decision in February 1995 by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Chicago, Illinois.
REMAND
The issue on appeal is entitlement to compensation under the
provisions of Title 38, United States Code, Section 1151, for
residuals of a mastectomy of the left breast due to delayed
hospitalization or medical or surgical treatment at a VA
treatment facility from April 1990 to February 1992. The
veteran essentially contends that between April 1991 to
February 1992, VA failed to provide appropriate treatment for
her left breast cancer by misreading biopsy reports and
ignoring her complaints of a painful left breast until she
insisted on a mammogram in February 1992 which resulted in a
biopsy, a diagnosis of cancer, and a mastectomy in March
1992. She asserts that the ensuing delay in hospitalization
or medical or surgical treatment for the breast cancer
resulted in additional disability of residuals of a
mastectomy of the left breast. Her representative argues
that a biopsy report was misread as far back as April 1990 by
VA.
In reviewing the record on appeal, however, the Board notes
that with respect to the relevant medical evidence in this
case, the record does not appear complete. The Board
observes that the RO has obtained VA medical records dated in
February 1992, and those dated between April and May 1990.
However, despite the representative’s assertions to the
contrary and development by the RO, the veteran in statements
received in July and August 1996, asserts that the 1990
records have nothing to do with her claim in that her
essential argument is that she was told following an April
1991 mammogram that the results were negative for cancer.
She had asserted in earlier statements that following the
April 1991 mammogram, she attended the VA clinic every three
months and complained of left breast pain which she was
purportedly told was due to either the earlier biopsy or to
fatty tissue. She maintains that this went on for about one
year until she insisted on a mammogram in February 1992,
which revealed suspicious lesions or masses, later determined
to be cancer.
In reviewing the record on appeal, the Board observes that
the record on appeal does not include any of the 1991 records
including the report of the April 1991 mammogram. The Board
notes that the case was referred in 1992 to a VA Chief of
Staff who was the responsible attending surgeon for the
veteran’s mastectomy which was performed in March 1992, and
who reviewed the medical records of the veteran beginning in
1990 and including the 1991 records. However, the Board
notes that the VA, including the Board, is deemed to have
constructive knowledge of these records and, in this case,
has actual knowledge of their existence. As such, they are
considered to be evidence which is of record at the time any
decision is made, and should be associated with the claims
file. See Bell v. Derwinski, 2 Vet.App. 611 (1992). See
also O.G.C. Prec. Op. No. 12-94, 60 Fed. Reg. 43186 (1995)
("...an [agency of original jurisdiction’s] failure to
consider records which were in VA's possession at the time of
the decision, although not actually in the record before the
AOJ, may constitute clear and unmistakable error...."). As
such, the RO should ensure that the veteran’s actual clinical
records beginning in April 1991, through February 1992 are
associated with the record in order to review the report of
the April 1991 mammogram, the clinical records surrounding
this procedure, as well as subsequent records of treatment
during the following year in which the veteran allegedly
reported pain in the left breast.
In view of the foregoing, the case must be remanded to the RO
for the following action:
1. The RO should request from the VA
Westside Medical Center all medical
records of treatment of the veteran dated
from April 1991 through February 1992.
The RO should ensure that the request
includes a specific request for the
report of an April 1991 mammogram and the
clinical records associated with that
procedure including any follow-up records
wherein the results of such testing may
have been communicated to or discussed
with the veteran. Copies of the medical
records from all sources she identifies,
and not currently of record, should then
be requested and associated with the
claims folder.
2. The RO should readjudicate the
veteran's claim. If the determination
remains adverse to the veteran, she
should be provided a supplemental
statement of the case which includes a
summary of additional evidence submitted,
any additional applicable laws and
regulations, and the reasons for the
decision. The veteran and her
representative should be afforded the
applicable time to respond.
The case should be returned to the Board for further
appellate review. The purpose of this REMAND is to afford
the appellant due process of law. The Board intimates no
opinion, either factual or legal, as to the ultimate
conclusion warranted in this case.
S. L. KENNEDY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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